AFW v WorkCover Authority of New South Wales

Federal Magistrates Court of Australia|2013-06-11

The Applicant's Submissions 27The Applicant provided detailed submissions in support of his application. 28With respect to the decision in GA v Department of Education and Training he contends that WorkCover has taken an unreasonably narrow view of the definition of an 'aggrieved person'. He contends that he is not just an ordinary member of the public, but that he is a part of the group whose information was accessed by WorkCover then released to government ministers and to news media. He contends that the link between him and WorkCover's conduct is direct and strong. 29The Applicants submits that a broader and more appropriate view of the definition of an 'aggrieved person' is based on the decision in Access for All Alliance Inc v Hervey Bay City Council [2004] FMCA 915:

"the complainant must show that they have a grievance that is beyond that which will be suffered by an ordinary member of the public to satisfy the test";
"the phrase includes a person who has a genuine grievance because the action prejudicially affects their interests" and
"'person aggrieved' should not be interpreted narrowly and should be given a construction that promotes the purpose of the relevant Act." 30The Applicants submits that these broader and more appropriate guidelines as to whether he is an aggrieved person have been met and should be favoured over the narrow view submitted by WorkCover. 31The Applicant further submits that whether he has "a grievance that is beyond that which will be suffered by an ordinary member of the public" is in no doubt. He asserts that he is part of the very group of people (injured workers who have made a workers compensation claim) whose information is the subject of the application. He says that for WorkCover to claim that he "has no greater standing than any other member of the public of NSW" is false and it is misleading. He says that has genuine and legitimate concern that WorkCover would release his information in the same way that it had released the information of other claimants. 32The Applicant submits that it is premature to speculate on any orders the Tribunal might make, and whether it can make such orders, before substantive facts have been established. 33The Applicant submits that it is evident from WorkCover's own privacy management plan that it has breached not only its own policy, but also the statutory obligations of the agency to safeguard the personal and health information of workers compensation claims from improper access, use and dissemination. 34He argues that the WorkCover NSW Privacy Management Plan does not make any provision for the use and disclosure of personal and health information in the manner that is the subject of this case.

The Privacy Commissioner's Submissions 35Mr McAteer provided written submissions in relation to the jurisdictional issue. He submits that section 53(1) of the PPIP Act does not create an 'open standing' provision. In such a circumstance it becomes necessary to identify the class of person who may be entitled to request an internal review and, subsequently, review in the Tribunal. 36Mr McAteer referred to a number of authorities. In Chapman & Anor v Commissioner of Police, NSW Police [2004] NSWADT 3, the Tribunal said at paragraph [18]: As to the standing argument and the alternative section 27 of the Privacy Act argument, I do not need to decide these given the finding on section 4(3)(h) of the Act. If I was required to render a finding on the standing issue, I would have been inclined to accord the applicant father standing as the uncontested evidence was that he was specifically and adversely financially affected by the alleged breach of the Act. He was also personally involved in the subject events from the very first day and he was the subject of some adverse comments from Inspector Oswald (set out in the father's affidavit). He was plainly aggrieved by the conduct of the internal review within the meaning of section 53(1) of the Act. 37ZR v NSW Dept of Education and Training [2008] NSWADT 199, concerned student marks relating to ZR's son, which was not ZR's personal information. The Tribunal said: I agree with the Department's submission in regard to ZR's standing in respect of this complaint. The conduct alleged does not concern ZR's personal information. In my view, ZR is not acting as a representative or agent of either ZR's son or any other students in ZR's son's class. It will therefore be a question of fact as to whether or not as a parent she is aggrieved by the conduct. In all the circumstances I am not satisfied that ZR is aggrieved by the conduct of the Department that is the subject of complaint No.1 . Accordingly, this complaint should be dismissed. 38In GA v Department of Education & Training it was said at paragraph [12]: In relation to the passage in item 5, GA said that a false allegation about a member of his family affects him. I am not persuaded that the principle can be stated so broadly. Whether or not a parent is aggrieved by the conduct of an agency which relates to his or her child, is a question of fact to be determined depending on the circumstances of each case. If the parent has legal responsibility for the child, because, for example, the child is a minor or has a disability, a parent may have standing to lodge a complaint in his or her own right. However where, as in this case, the child is an adult and there is no evidence of him or her consenting to or supporting the application made by a parent, then a real issue arises as to the parent's standing. In addition, in this case, there is no connection between the alleged conduct of the agency and GA. The comment in item 5 relates exclusively to the son. In all the circumstances I am not satisfied that GA is "aggrieved by the conduct" of the agency that relates to his adult son. 39Further, in GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10, it was said at paragraph [24]: Accordingly, the applicant is only permitted to agitate matters before the Tribunal in these proceedings that relate to conduct or alleged contraventions concerning him personally (his personal information) and which directly relate to such conduct "that was the subject of the [internal review] application" under s 53 of the Privacy Act. That is the nature of the application that has already been substantially heard before the Tribunal and in which several interlocutory applications have been heard and determined. 40Mr McAteer submitted that these decisions indicate that an 'aggrieved' person is one whose personal information has been dealt with by an agency contrary to privacy principles. However, he noted a somewhat wider approach by the President in NR and NP v Roads and Traffic Authority [2004] NSWADT 276. Although it was not necessary to rule on the question of standing, the President made the following comments at paragraph [58]: The Tribunal makes the following brief observations. Standing to apply to the Tribunal is given by the Privacy Act to a 'person aggrieved' by the conduct in issue. On the other hand the rights conferred by the Act seek to protect the personal information of individuals'. Had the Parliament intended to limit standing to those individuals it would, presumably, have used that term rather than 'person aggrieved'. As a matter of statutory construction, the applicant' referred to in s 55(2)(a) is the 'person aggrieved' referred to in s 53(1), by dint of the definition of 'applicant' found in the latter provision. So, it may be the case that a 'person aggrieved' other than the individual affected by the contravention could make a claim for monetary compensation. 41Mr McAteer submitted that an action under the PPIP Act is available to two classes of persons: a.Where the complaint involves the person's own personal information, that person. This will be the majority of cases. b.A person other than the person about whom the information in question relates, who has suffered some tangible and measurable impact, as opposed to merely having an intellectual or emotional concern about the matter.

Discussion 42I agree with Mr McAteer's submission in regard to the classes of persons who are able to bring an action under the PPIP Act. However, the initial approach to be adopted is to determine whether or not the information that is the subject of the application is health information for the purposes of the HRIP Act. That will be a question of fact. 43If the information is health information, it will then be necessary to determine whether or not the Applicant has standing to bring the application. 44Both in PPIP Act and HRIP Act, 'personal information' is defined as: personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion (HRIP Act, s 5(1)); PPIP Act, s 4(1)). 45Since both the PPIP Act and HRIP Act is beneficial legislation, the expression should be interpreted broadly, and the exclusions from the definition of personal information should be construed narrowly: Department of Education & Training v PN [2006] NSWADTAP 66 at paragraph [78]. 46Documents which do not contain any obvious features identifying an individual can be 'personal information' by virtue of the context to which they belong: WL v Randwick City Council [2007] NSWADTAP 58 at [15]. 47In WL the Appeal panel indicated that information might be 'personal information' even though extrinsic knowledge is necessary to identify an individual, where the recipient of the information can link the information to an individual. 48WorkCover contends that the information is not "personal information" within the meaning of section 5 of the HRIP Act, and is therefore not "health information" within the meaning of section 6 of the HRIP Act. 49I do not agree with that submission. I accept that the information under consideration is not the Applicant's 'personal information'. I also accept that much of the information is generic in nature and that the identity of the individuals referred to in some of the case studies in issue is not apparent nor could the identity reasonably be ascertained from the information or opinion. 50However, in my view, it is possible that the identity of the individual referred to in at least one of the case studies contained in the media release could be identified from the details provided. In my view the term "personal information" is broad enough to include this type of information. 51The question therefore arises as to whether or not the Applicant has standing to bring the application. 52I have been referred to a number of authorities that have dealt with the meaning of the expression 'person who is aggrieved by the conduct'. 53There is no dispute that the information concerned does not relate to the Applicant. Nor is there any suggestion that the individuals to whom the information does relate have either consented to or supported the application brought by the Applicant. 54The Applicant contends that he has standing to bring the application because he is a member of a class of people affected by the conduct in issue. He states that as an injured worker who has made a worker's compensation claim he has greater standing than other members of the public of NSW. 55I do not agree with that submission. 56In my view Judicial Member Robinson correctly stated the position in GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10 in the passage from paragraph [24] of his decision that has been referred to above. 57The Applicant is only permitted to agitate matters before the Tribunal in proceedings that relate to conduct or alleged contraventions concerning him personally and where he has suffered some tangible and measurable impact. 58In my view, whether or not that is the case is a question of fact to be determined on the evidence presented. In this matter I do not accept that the Applicant has standing to bring the application. It is not sufficient that the Applicant identifies himself as falling within a group of workers who have made a worker's compensation claim. 59The Applicant has not established that he is a person who is aggrieved by the conduct for the purposes of section 53 of the PPIP Act. Accordingly, it is my view that the Tribunal does not have jurisdiction to review conduct or alleged contraventions in this matter. 60The application should therefore be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2013

WorkCover's case 13WorkCover contends that the Applicant is not an "aggrieved person" for the purposes of section 53(1) or 55(1A) of PPIP Act. It relies on views expressed by Deputy President Hennessy in GA v Department of Education and Training [2005] NSWADT 47 at paragraph [8] where she stated: 8 The scope and purpose of the PPIP Act is reflected in the long title which begins "An Act to provide for the protection of personal information, and for the protection of the privacy of individuals generally; ..." Such a purpose is also evident from the wide definition of "personal information" in s 4. The PPIP Act is beneficial legislation and accordingly a broad interpretation of the words "person aggrieved" is appropriate. However, the person must nevertheless be "aggrieved" because he or she believes that the conduct constitutes a breach of the PPIP Act, not for any extraneous reason. 14It is a question of fact depending on the circumstances. It was also established in the case of Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 that a person who suffers a grievance beyond the suffering experienced by an ordinary member of the public may be a person aggrieved. 15WorkCover submits that the Application in this case can be compared to the facts in GA v Department of Education and Training. Both relate to a complaint as to the conduct of an Agency towards another party (or parties.) The complaint made by GA related to the conduct of the Agency towards his adult son. The Applicant complains about the conduct of WorkCover in relation to a number of de-identified individuals. WorkCover further submits that the relationship between the Applicant is somewhat further removed than in the GA case as there appears to be no relationship between him and the de-identified persons. 16At paragraph [12] in GA v Department of Education and Training Deputy President Hennessy stated 12 ... [W]here, as in this case, the child is an adult and there is no evidence of him or her consenting to or supporting the application made by a parent, then a real issue arises as to the parent's standing. In addition, in this case, there is no connection between the alleged conduct of the agency and GA. The comment in item 5 relates exclusively to the son. In all the circumstances I am not satisfied that GA is "aggrieved by the conduct" of the agency that relates to his adult son. 17WorkCover submits that the circumstances of that case are directly applicable to the current application. The Applicant complains on behalf of de-identified individuals. He does not have the consent of those individuals to act for him, nor is there any evidence of their support for him doing so. The alleged conduct of WorkCover in no way relates to him personally. There is no connection between the conduct of WorkCover and the Applicant. 18WorkCover contends that, even on a broad interpretation, to define the Applicant as an "aggrieved person" is to construe the words too widely. It says that the Applicant has no greater standing than any other member of the public of NSW. To define him as such would create a class of aggrieved persons far too wide for the practicable application of PPIP Act. 19WorkCover submits that the finding in GA v Department of Education is supported by established judicial authorities on standing, for example, Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at pages 530 and 531 per Gibbs CJ, and Australian Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human Services and Health [1995] 128 ALR 238 at pages 251252 per Lockhart J. For example, in Australian Right to Life Association, Lockhart J observed (at 252): "The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public. In order that an applicant may show that he is a person 'aggrieved', the element of 'grievance' must be special to the applicant. He must suffer more greatly or a different way than other members of the community." 20WorkCover contends that in the present case, the Applicant is referring to an infringement of rights allegedly suffered by de-identified third parties with whom he has no relevant connection. The Applicant is not himself personally affected by the disclosure of the information that is the subject of his Application, nor does the Applicant indicate that his alleged grievance is special to him. 21For these reasons, WorkCover submits that the Applicant is not an "aggrieved person" for the purpose of section 53(1) or 55(1A) of the PPIP Act and therefore has no standing to apply for review by the Tribunal under section 55(1) of the PPIP Act. 22WorkCover also contends that the information, which is the subject of the Application, is not "personal information" within the meaning of section 5 of the HRIP Act, and is therefore not "health information" within the meaning of section 6 of the HRIP Act. 23It submits that the Tribunal therefore does not have jurisdiction to consider the Application or to make orders under section 55(2) of the PPIP Act. 24WorkCover also contends that the Tribunal will be limited in the orders that it could make because it could not be satisfied that the Applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency (as required by section 55(4)). 25WorkCover submits that there is no allegation of, or evidence that, the Applicant has suffered such harm. The orders sought are done so on behalf of others. Moreover, the persons referred to in the Applicant's initial complaint and orders sought are de-identified. It is therefore impossible for the Tribunal to be satisfied that they have sustained loss or harm. WorkCover submits that it is simply a hypothetical argument based on supposition by the Applicant. Orders under paragraphs 55(2)(a) and 55(2)(e) would not be available to the Applicant unless the Applicant himself was able to demonstrate loss or damage of the kind referred to in those paragraphs. 26WorkCover acknowledges that section 55(3) provides that: "Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 (ADT Act)." However, WorkCover submits that even if the Applicant sought orders available under those provisions in the ADT Act, his lack of standing would make them unavailable to him.

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